England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
APPEAL OF PLAINTIFF
FROM ORDER OF
HIS HONOUR JUDGE ALLARDICE

		Royal Courts of Justice Strand London WC2
		2nd November 1994

LORD JUSTICE KENNEDY: This is the Plaintiffs' appeal from a decision of Judge Allardice sitting in the County Court at Stafford who on the 25th June 1993 dismissed the Plaintiff's claim for damages for personal injuries sustained in the course of her employment on 3rd June 1986. The Plaintiff who was born on 20th November 1959 was employed by the Defendants as a glaze sprayer at their premises at Stoke-on-Trent. The glaze was being applied to earthenware coffee jars by means of a compressed air gun. Photographs which have been provided to us show the nature of the process. There was a booth rather like a small cupboard without a front, the base of the booth being some 42 inches above floor level. On the floor of the booth there was a turntable and in the centre of the turntable there was a vertical spindle. For the first phase of the operation the coffee jar was placed upside down on the spindle. Glaze was then applied to the outside of the jar. After that the jar was taken off and placed to the right-hand side of the operator outside the booth so that it could dry. That operation, as we understand it, was repeated with a number of coffee jars so that over a period a number would be standing drying perhaps in racks before the time came to embark upon the second stage of the operation. When the jars were dry they were placed one at a time back into the booth and this time stood upright on the turntable from which the spindle had been removed, the opening of the jar now being at the top. The gun was then used to glaze the inside of the jar.

The centre of the turntable was about 12 inches back from the front of the booth and the jar itself, the work piece, was about 5 inches high. The top of the jar was therefore about 4 feet above floor level. The Plaintiff was not a particularly large lady; she was apparently 5' 6" tall. When doing the second phase of the operation it was her practice to lean forward and look down into the jar whilst she was using the gun. Her face would therefore at that stage, on the evidence, have been a good deal less than 12 inches from the top of the jar. In those circumstances it is not altogether surprising that the Plaintiff and others found that glaze which, mixed with air, came out of the gun as haze got on to her hair and on to her face. Her system of work was not regarded by the Defendants as being in any way inappropriate and, as I have indicated, it involved putting her head into what one of the expert witnesses described as the vortex created when the gun was applied to the inside of the jar.

The application of glaze by handgun was a process well established by 1986. It had been used for many years by these Defendants and others in the pottery industry. It was not, on the evidence, the practice of these Defendants or other employers to provide goggles or any other type of eye protection for that process. There had never been, according to research evidence given during the course of the trial in this case, any history of significant eye injury.

On the day of the accident in 1986, so the judge found, a small foreign body got into a coffee jar when it was standing upright to the right-hand side of the Plaintiff after she had glazed the exterior of the jar, that is to say, after phase 1 and before phase 2. The foreign body was very small. We were told it was 3mm x 3mm x ½mm. When the Plaintiff placed that particular jar back on the turntable she did not look inside it. On the evidence it was no part of her job to inspect it at that stage, nor was it the job of anyone else to carry out an inspection then. She was carrying out a repetitive task under some degree of time pressure, but she was not paid by piece rates. She applied the gun to the inside of the jar in the usual way and when she did so, on the judge's finding, a particle already there flew up and entered her left eye. As a result she sustained a very serious injury. It is not necessary for me to dwell on that injury or the consequences of it because we have been told that it is agreed between counsel that if the Plaintiff is successful in this appeal in relation to liability, the appropriate course is for the matter then to be remitted to the County Court for assessment of damages.

So much for the accident itself. Three breaches of statutory duty were alleged in the Statement of Claim as amended by the time the judge had to consider it. The first was a breach of Section 29 (1) of the Factories Act 1961, the allegation being that the place of work was unsafe. The judge found the allegation not to be proved and there is no appeal in respect of it. The second breach of statutory duty relied upon arises from provisions of the Pottery (Health and Welfare) Special Regulations 1950. It is necessary to look at those regulations in a little more detail. They applied to all factories in which the manufacture or decoration of pottery was carried on (see Regulation 3). This was such a factory. Regulation 17 required that processes identified in that regulation should not be carried on without the use of an efficient exhaust draught. One such process identified in the regulations was glaze spraying. That was the process in which the Plaintiff was engaged. In Regulation 2 an efficient exhaust draught was defined as -

" ..... an exhaust draught which effectively removes, as near as possible to the point of origin, dust, fume or spray generated in the process."

It can thus be seen that the regulation would appear to have no relevance to the circumstances of this case because the particle was not dust, fume or spray generated in the process in which the Plaintiff was engaged at the time of her accident. Furthermore, the judge found as a fact that if there had been an efficient exhaust draught sufficient to comply with the requirements of the 1950 Regulations it would not in fact have removed the particle which entered the Plaintiff's left eye. Accordingly, the 1950 Regulations are of no assistance to the Plaintiff either.

That leaves the third breach of statutory duty upon which the Plaintiff seeks to rely. That arises under the provisions of the Protection of Eyes Regulations 1974. The statutory authority for those regulations is to be found in Section 65 of the Factories Act 1961 which reads:

"In the case of any such process as may be specified by regulations of the Minister, being a process which involves a special risk of injury to the eyes from particles or fragments thrown off in the course of the process, suitable goggles or effective screens shall, in accordance with any directions given by the regulations, be provided to protect the eyes of the persons employed in the process."

That, as it seems to me, is simply the empowering section which enabled the Minister to make the regulations themselves. Regulation 3 (1) of the Protection of Eyes Regulations provides, so far as relevant:

"These Regulations shall apply to -

(a) all factories; and

(b) all premises .....

where any specified process is carried on."

One looks therefore to the later part of the regulations themselves to see what are the processes specified. Some of them are set out in Part III. It is submitted to us that Regulation 27 in Part III is the relevant regulation. Part III is headed Processes in which approved eye protectors or approved shields or approved fixed shields are required. Regulation 27, so far as relevant, provides:

" ..... the surface conditioning or spraying of material by means of apparatus ..... to which air ..... is supplied under pressure ..... where ..... there is a reasonably foreseeable risk of injury to the eyes of any person engaged in the work from particles or fragments thrown off ..... "

That then is the specified process.

If this was a specified process then the provisions of Regulation 5 become relevant because Regulation 5 provides:

"(1) The employer of every person who is employed in a factory for any of his time in any of the specified processes shall provide for his use -

(a) .....

(b) .....

(c) in the case of a person employed in a process specified in Part III ..... eye protectors or a shield or a sufficient number of fixed shields."

At the end of that analysis it becomes clear that for present purposes the important question is this: was there a foreseeable risk of injury to the eyes of any person engaged in the work from particles or fragments thrown off, those words being taken from Regulation 27. Mr Goddard invites us to add, in parenthesis, the words "in the process" which are to be found in Section 65, but not repeated in Regulation 27. I, for my part, am not sure that the addition of those words would make any difference, but I do not find them to be in the relevant regulations. Whatever way one approaches this regulation it cannot, in my judgment, be confined to particles originally part of the work piece because Regulation 27 also applies to cleaning operations which, ex hypothesi, would involve the removal of dirt and other material not originally part of the work piece.

What is clearly intended by the legislature is to provide a regulation which requires protection against particles dislodged by the relevant worker distinguishing such particles from particles, for example, dislodged by another worker working nearby or coming in some way from some other part of the factory. The judge therefore had to consider, as the important question in the present case, foreseeability. To assist him in that consideration he referred to a passage in Salmon on Tort and to the decision of the House of Lords in Bolton v Stone [1951] AC 850. It is part of Mr Webb's submission before us that the judge allowed himself to be misled by the word "likelihood" used in the part of the text book to which he referred - likelihood of injury. So Mr Webb invited us to look at the decision of the Privy Council in Overseas Tankship (UK) v Miller Steamship [1967] AC 617, often known as The Wagon Mound (No 2). There Lord Reid, giving the opinion of the Privy Council and having referred specifically to the decision in Bolton v Stone, said at page 642:

"So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable - it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.

"But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it."

In the earlier case of Hughes v Lord Advocate [1963] AC 837 an 8 year old boy had knocked a paraffin lamp into a manhole and there was an explosion. He fell into the hole and was burned. Lord Morris, at page 853, said:

" ..... there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage 'the precise concatenation of circumstances which led up to the accident.'"

The proper approach, as it seems to me, can be summarised in this way as set out by Mr Munkman in his Employers' Liability (11th Edition) at page 56:

" ..... even a small risk is sufficient to come within the range of foreseeable damage unless a reasonable man would disregard it, e.g. on the ground that the effort or expense of eliminating the risk was out of proportion; and in that event it is a case of no negligence, rather than being outside the foreseeable range."

Was there here a small risk, a foreseeable risk, despite the absence of any previous significant injury? In the words of Regulation 27, was there any "reasonably foreseeable risk" of injury to the eyes of any person engaged in the work? Mr Webb submits that there was because, first of all, on the evidence it is clear that the operator's face was known to be very near to the gun which she was using and to the work piece. Compressed air was being used which created a cloud of mixed air and glaze. The worker's head was so close as to be affected by that cloud of mixed air and glaze. It could and, on occasion, did get into the hair (there was evidence that workers washed their hair daily) and into the eyes. It is true that experience showed that when it got into the eyes it caused no significant injuries. But, as the safety officer conceded, it is clearly undesirable to have any such substance in the eyes.

He was asked, "As Safety Officer did you not know that the substance being used to apply the glaze was substance which should be kept away from the eyes?" He answered, "Yes. I wouldn't have recommended that eyes come in contact with glaze, with ceramic glaze." He was saying that conscious of the history because in the next answer he emphasised, as he put it, that - " ..... we had got nothing to give us a clue that there was a foreseeable risk." A few questions later he was asked, " ..... you knew the ceramic glaze being used could cause damage to the eyes?" To that the said, "Yes. To what extent I didn't know." So much for his approach to that particular matter.

Mr Webb goes on to submit that if any foreign body happened to be lying in, for example, a coffee jar when the coffee jar was placed upon the turntable and subjected to phase 2 of the operation then the application to the coffee jar of the compressed air and glaze would cause the foreign body, if it was not smothered, to bounce out of the jar just at time when the worker's head would be a matter of inches away. Of course, as Mr Goddard points out, the chance of eye injury was very small. In the first place, there was unlikely to be anything in the jar. The jars were all brushed out and inspected before the first phase was embarked upon. The first phase itself involved inverting the jar and there was no particular source of debris which was likely to cause particles to fall into jars between phase 1 and phase 2. But that said, the jars would, between phase 1 and phase 2, be standing upright and open in factory premises where chips and particles would not be unknown. They might be standing on shelves and, to some extent, protected by shelves above them. But the shelves above them might themselves be carrying particles which could drop into objects on shelves below. There was, as I have already indicated, no provision for inspection between phase 1 and phase 2. It was part of the Plaintiff's case at Common Law that there should have been an inspection either by the Plaintiff as part of her assigned duties or by someone else at that stage. For my own part, I doubt whether that would have been either practical or effective.

The known absence of an inspection at that stage made it, in my judgment, all the more important to guard against the possible consequences of a foreign body being in the jar at the start of phase 2. Mr Goddard also points out that even if there was a foreign body in a jar it was much more likely to be covered rather than ejected. And if it were ejected, even towards the Plaintiff or whoever was working in the Plaintiff's place, the chances of it hitting the eye would be very small. All of that is true. But to my mind this was an operation which, when one looks at it in the round, carried with it a reasonably foreseeable risk of injury. One has only to imagine the comment of any eye surgeon if asked to watch this Plaintiff at work and asked to watch her putting her head into the booth in order to apply the glaze to the inside of the jar and then removing her head with perhaps some of the glaze adhering to her hair and complaining, as she did at times, of a gritty sensation in her eyes. I say that advisedly because Mrs Jarvis the head handsprayer, when giving evidence, accepted that complaints of a gritty sensation in the eyes were complaints which she did hear of from the Plaintiff prior to her accident. As Mr Webb says, if there had been a device so strong as to suck away all haze and particles the situation of course might be different. But we are not dealing with the situation in which there was an exhaust device of that kind.

If there was a foreseeable risk, as I find that there was, then the duty to provide eye protectors or a shield was, by reason of Regulation 5 of the Regulations, absolute. It was not suggested in this case at any stage that if such protection had been provided this accident would nevertheless have occurred. Accordingly, I would allow this appeal and remit the matter to the County Court for the assessment of damages.

MRS JUSTICE HALE: I agree.

Order: Appeal allowed with costs here and below. Legal aid taxation.